OUTLINE

This Bill contains savings and
transitional provisions associated with the repeal of the
Northern Territory National Emergency Response Act
2007 . This Bill also makes amendments to existing
principal legislation as part of the Stronger Futures in the
Northern Territory framework.

· contains savings
provisions in relation to the land measures, consequential upon the
repeal of the Northern Territory National Emergency
Response Act 2007 ;

· contains savings
provisions in relation to the transitioning of areas, declarations,
liquor licences, and permits for the tackling alcohol abuse
measure;

· contains
transitional provisions in relation to the community stores
licences in place under the Northern Territory National
Emergency Response Act 2007 immediately prior to its
repeal;

· contains
consequential amendments to the Aboriginal Land Rights
(Northern Territory) Act 1976 in relation to the repeal of the
provisions for the grant of leases for five years in the
Northern Territory National Emergency Response Act
2007 and other matters;

· amends the
Classification (Publications, Films and Computer Games) Act
1995 to add a sunset and review date to the provisions in Part
10 of that Act, amongst other things;

· amends the Crimes
Act 1914 to insert certain exceptions to the rules that prevent
consideration of customary law or cultural practices in bail and
sentencing for certain offence provisions (relating to entering,
remaining on or damaging cultural heritage, or damaging or removing
a cultural heritage object) for both Commonwealth and Northern
Territory offences; and

makes minor consequential
amendments to Part 3B of the Social Security (Administration)
Act 1999 (income management regime), to remove references to
the Northern Territory National Emergency Response Act
2007 .

relevant time means, if the
Commonwealth Minister for Indigenous Affairs, by legislative
instrument under subclause 4(1), determines a day that is on or
after the commencement of the Act but before
17 August 2012 - the beginning of that day; or
otherwise - the end of 17 August 2012.

Clause 1 sets out how the new Act is to
be cited, namely, as the Stronger Futures in the Northern
Territory (Consequential and Transitional Provisions) Act
2011 .

Clause 2 provides a table setting out the
commencement dates for the various sections in, and Schedules to,
the new Act. The Schedules to the new Act all commence at the
same time as section 3 of the Stronger Futures in the Northern
Territory Act. That Act will commence on Proclamation, to
allow rules to be made under the new legislation to stipulate
essential application matters, such as the areas in which the new
measures will apply. If no earlier Proclamation is made, then
section 3 of that Act commences six months and one day after Royal
Assent.

Clause 3 provides that each Act specified
in a Schedule is amended or repealed as set out in that Schedule
and that any other provision in a Schedule has effect according to
its terms.

Clause 4 defines the terms that are used
in the new Act. In this explanatory memorandum, the defined
terms will be addressed in the context in which they
appear.

Schedule 1 will repeal the NTNER
Act and make certain saving and transitional provisions in relation
to leases granted and Commonwealth interests acquired under
sections 31 and 47 of the NTNER Act respectively as well as
transitional provisions in relation to alcohol and community store
licences.

Background

It is the Commonwealth’s
intention that the NTNER Act be repealed and be replaced by the
Stronger Futures in the Northern Territory Act. Despite its
repeal, there are provisions of the NTNER Act that will be saved or
transitioned by this Bill.

In relation to the land
provisions, the savings provisions enable the compulsory five-year
leases to continue with expiry no later than
17 August 2012, to manage the transition to alternative
voluntary leasing arrangements. The items provide for certain
saving provisions for leases granted under section 31 of the NTNER
Act (the compulsory five-year leases) and Commonwealth interests
acquired under section 47 of the NTNER Act. The Bill also
ensures that provisions relating to compensation for acquisition of
property and payment of agreed amounts or rent for the compulsory
five-year leases and other acquisitions under Part 4 of the
NTNER Act continue in force. Additionally, the relevant
appropriation will be saved for amounts payable before or after the
relevant time including, for example, rent yet to be paid by the
Commonwealth to landholders affected by the compulsory
five-year leases that were legislated for under section 31 of the
NTNER Act.

In relation to the tackling
alcohol abuse measure, there are transitional provisions relating
to the areas in which the alcohol restrictions apply. The
provisions ensure that any areas that were ‘prescribed
areas’ under the NTNER Act will become ‘alcohol
protected areas’ and legislative alcohol restrictions
continue to apply.

In addition, this Bill provides
for various other matters to continue to operate under the Stronger
Futures in the Northern Territory Act. For example, this Bill
provides for the transition and continued operation of certain
declarations

made under section 12 of the
NTNER Act (such as declarations that certain defences, that is, the
recreational boating defence, are or are not available),
restrictions and conditions imposed in relation to liquor offences
(under subsections 13(4) and (5) of the NTNER Act) and conditions
in relation to liquor permits (under subsections 14(2) and 14(3) of
the NTNER Act).

In relation to food security,
the provisions in Part 4 are to ensure that licences granted under
the current NTNER Act are able to continue under the new
arrangements in place under the Stronger Futures in the Northern
Territory Act.

Explanation of the
changes

Part 1 -
Northern Territory National Emergency Response Act
2007

Item 1 provides that the whole of the
NTNER Act is repealed.

Part 2 - Saving provisions
relating to land

Item 2 is a savings provision in
relation to land and, in accordance with subitem 2(1) , only
applies if the Act commences before 17 August 2012 and when the
relevant time (as defined in clause 4) does not occur
on the day of commencement.

Subitem 2(2) enables the
compulsory five-year leases to continue no later than when they
were due to expire under their original NTNER Act timeframe to
manage the transition to alternate voluntary leasing arrangements.
Subitem 2(2) is a saving provision which, by continuing the
application of relevant provisions under the NTNER Act, enables
leases granted under section 31 of the NTNER Act to continue until
the relevant time or until the end of 17 August 2012 (the day on
which the leases acquired under the NTNER Act expire in accordance
with paragraph 31(2)(b) of that Act). The Commonwealth
Minister for Indigenous Affairs may, by legislative instrument,
determine the relevant time that these savings provisions, and
therefore the leases, will cease. The relevant time can be on
the day that the Stronger Futures in the Northern Territory Act
commences, or any day from commencement until the end of 17 August
2012. The possible continuation of leases until 17 August
2012 is to assist the transition of arrangements under these leases
to voluntary land tenure arrangements.

Item 3 is a savings provision which
relates to rights, titles and interests in land that were vested in
the Commonwealth under section 47 of the NTNER Act as a result of
any Commonwealth acquisition of property, such as the area of land
covered by the Ilpeye Ilpeye town camp. Item 3 also relates
to existing rights and interests that, at the time of any
acquisition, are preserved under section 48 of the NTNER Act and
are not therefore rights, titles and interests acquired by the
Commonwealth.

As provided under item 3,
despite the repeal of the NTNER Act, sections 3, 48, 49, 50, 51,
53, 54, 55, 56, 58 and 59 in Part 4 and all of Part 8 of the NTNER
Act continue in force in relation to property acquired by the
Commonwealth under section 47 of the NTNER Act, as do any
instruments made under those provisions. This is to help
ensure that these provisions can still be used to facilitate
arrangements being put in place for the purpose of meeting
objectives related to the acquisition of property under section 47
of the NTNER Act.

Item 4 provides that, notwithstanding
the repeal of the NTNER Act, sections 60, 61, 62 and 63 of the
NTNER Act are saved and continue to apply to those matters under
subitems 4(1), (2) and (3).

Subitem 4(1) provides that,
despite any repeal of sections 60 and 61 of the NTNER Act, those
sections continue to apply in relation to property the Commonwealth
acquired either through the operation of Part 4 of the NTNER Act or
through an act referred to in paragraph 1(b) or (c) in section 60
of the NTNER Act, which occurred before the relevant time.
These provisions provide that, in relation to such property,
the Commonwealth is liable to pay reasonable compensation to the
owner of the acquired property. Should the Commonwealth and
the owner be unable to reach agreement on the amount of
compensation, the owner may initiate proceedings in a court of
competent jurisdiction for the recovery, from the Commonwealth, of
a reasonable amount of compensation as determined by the court.
In making a determination, the court must take into account
amounts paid or payable by the Commonwealth, in accordance with
section 61 of the NTNER Act.

Subitem 4(2) provides that,
despite any repeal of section 62 of the NTNER Act, that section
will continue to apply, in accordance with subitem 2(2), to
agreements made under section 62 and to rent that is payable in
relation to leases granted under section 31 of the NTNER
Act.

Because amounts payable under
the saved sections 60, 61 and 62 of the NTNER Act will still
need to be validly appropriated from the consolidated revenue fund,
subitem 4(3) saves the effect of section 63 of the NTNER
Act, which provides for the appropriation, as required for this
purpose.

Part 3 -
Transitional provisions relating to alcohol

Subitem 5(1) provides that any
area that was subject to alcohol restrictions under the NTNER Act,
immediately before its repeal, is taken to be an area specified in
a rule made under subclause 27(1) of the Stronger Futures in the
Northern Territory Act. That is, the area in question remains
subject to alcohol restrictions, but now under the Stronger Futures
in the Northern Territory Act.

Subitem
5(2 )
provides that, if subitem 5(1) has effect (that is, if a rule is
taken to have been made under subclause 27(1) of the Stronger
Futures in the Northern Territory Act), then a rule can be made
under subclause 27(2) of the Stronger Futures in the Northern
Territory Act revoking the first rule (that is, the alcohol
restrictions that would otherwise apply in respect of an area can
be lifted).

Subitem 6(1) provides that any
declaration made by the Commonwealth Minister for Indigenous
Affairs under subsection 12(8) of the NTNER Act (that is, a
declaration that certain defences against alcohol offences are not
available), which is still in force immediately before that
Act’s repeal, remains in force as if it had been made under
subsection 75D(1) of the Northern Territory’s Liquor Act (as
inserted by clause 8 of the Stronger Futures in the Northern
Territory Act).

Subitem
6(2 )
provides that any declaration made by the Commonwealth Minister for
Indigenous Affairs under subsection 12(8A) of the NTNER Act (that
is, a declaration that certain defences against alcohol offences
are available), which is still in force immediately before that
Act’s repeal, remains in force as if it had been made under
subsection 75D(2) of the Northern Territory’s Liquor Act
(as inserted by clause 8 of the Stronger Futures in the
Northern Territory Act).

Subitem 7(1) provides that any
determination made by the Commonwealth Minister for Indigenous
Affairs under subsection 13(4) of the NTNER Act (that is, a
determination about what is not authorised by a liquor licence),
which is still in force immediately before that Act’s repeal,
remains in force as if it had been made under subclause 12(4) of
the Stronger Futures in the Northern Territory Act.

Subitem 7(2) provides that any
determination made by the Commonwealth Minister for Indigenous
Affairs under subsection 13(5) of the NTNER Act (that is, a
determination about the conditions on a liquor licence), which is
still in force immediately before that Act’s repeal, remains
in force as if it had been made under subclause 12(5) of the
Stronger Futures in the Northern Territory Act.

Subitem 8(1) provides that any
determination made by the Commonwealth Minister for Indigenous
Affairs under subsection 14(2) of the NTNER Act (that is, a
determination about what is not authorised by a liquor permit),
which is still in force immediately before that Act’s repeal,
remains in force as if it had been made under subclause 13(2) of
the Stronger Futures in the Northern Territory Act.

Subitem 8(2) provides that any
determination made by the Commonwealth Minister for Indigenous
Affairs under subsection 14(3) of the NTNER Act (that is, a
determination about the conditions on a liquor permit), which is
still in force immediately before that Act’s repeal, remains
in force as if it had been made under subclause 13(3) of the
Stronger Futures in the Northern Territory Act.

Part 4 - Transitional
provisions relating to community store licences

Subitems 9(1) and (2) ensure that any current community store licence under
the NTNER Act continues under the new arrangements provided by the
Stronger Futures in the Northern Territory Act. It provides
that a NTNER Act Part 7 community store licence that was in force
immediately prior to the commencement of the Stronger Futures in
the Northern Territory Act, in relation to a store whose premises
are located in the food security area, will continue to be in force
(and may be dealt with) as if the licence had been granted under
the Stronger Futures in the Northern Territory Act. It also
provides that any conditions that were imposed on the licence under
section 103 of the NTNER Act continue as if they had been
imposed under the Stronger Futures in the Northern Territory
Act.

Subitem 9(3) ensures that, for
the purpose of subclause 59(1) of the Stronger Futures in the
Northern Territory Act, any breaches of transitioned licence
conditions, or offences against the NTNER Act committed by the
owner, manager or person involved in the store before commencement,
or licences obtained improperly, are to be treated as if occurring
under the Stronger Futures in the Northern Territory Act.
This will allow transitioned licences to be revoked under the
relevant provision of the Stronger Futures in the Northern
Territory Act for these reasons.

Subitem 9(4) provides that a
notice relating to a proposed decision to revoke or refuse to vary
a licence under the NTNER Act continues in force on and after
commencement as if that notice had been issued under
subsection 60(1) of the Stronger Futures in the Northern
Territory Act .

Subitems 10 and 11
confirm that appointments of authorised officers made and identity
cards issued under the NTNER Act immediately before commencement of
the Stronger Futures in the Northern Territory Act continue in
force under the Stronger Futures in the Northern Territory
Act.

Schedule 2 amends the
Aboriginal Land Rights (Northern Territory) Act 1976
to ensure that its operation is consistent with the repeal of the
NTNER Act, including the repeal of leases granted under section 31
of the NTNER Act. Schedule 2 also repeals Part IIB of the
Land Rights Act, and introduces an additional function for Land
Councils to provide assistance to community living area landowners,
in relation to dealings in their land.

Background

Part 1 of Schedule 1 to this
Bill repeals the NTNER Act. Schedule 2 to the Bill therefore
amends the Land Rights Act to ensure that its operation is
consistent with the repeal of the NTNER Act. The
consequential provisions in relation to the NTNER Act in Schedule 2
primarily cover provisions in the Land Rights Act concerning land
covered by leases granted under section 31 of that Act. If
the NTNER Act is repealed before 17 August 2012, Part 2 of Schedule
1 to this Bill provides, despite any repeal of the NTNER Act, for
the continuation of leases granted under section 31 of the NTNER
Act from the date of commencement up until 17 August
2012.

To manage the
transition to alternate voluntary leasing arrangements beyond the
date the NTNER Act is repealed, item 10
provides certain saving provisions in relation to items 5, 8 and 9
of this Schedule. These items have effect if this Bill
commences before 17 August 2012 and if leases granted
under section 31 of the NTNER Act continue after commencement of
this Bill (until no later than 17 August 2012), as determined by
the Commonwealth Minister for Indigenous Affairs for the purposes
of clause 4 (definition of relevant time ).

Schedule 2 also
provides for the repeal of Part IIB of the Land Rights Act.
Part IIB of the Land Rights Act - containing the
Statutory Rights provisions - was inserted by Schedule 3 to
the Families, Community Services and Indigenous Affairs and
Other Legislation Amendment (Northern Territory National Emergency
Response and Other Measures) Act 2007 . This provided a
mechanism for the Commonwealth, Commonwealth authorities, the
Northern Territory and Northern Territory authorities to retain an
interest in buildings and infrastructure constructed or upgraded on
Aboriginal land with government funds. It was intended that
this would allow for future government investment on Aboriginal
land to be protected.

The Statutory
Rights provisions under Part IIB of the Land Rights Act provide
that any government interest would only be created with the consent
of the Land Council. The Land Councils have not used these
provisions. Further, these provisions were intended to be
used as a transitional arrangement, as the Statutory Rights
provisions included a good faith obligation for holders of
statutory rights and the relevant Land Council to negotiate a lease
under section 19 of the Land Rights Act.

The Statutory
Rights provisions have not been used, and any future use would not
be consistent with the Commonwealth Government’s voluntary
leasing agenda that was outlined in the Stronger Futures in the
Northern Territory Discussion Paper. They are therefore being
repealed.

Schedule 2 also
provides for an additional function to be performed by Land
Councils, namely to provide assistance to owners of community
living areas, if requested to do so, in relation to negotiating
dealings in the relevant land at the Land Council's expense.
It is intended that this include providing or arranging for
legal or administrative assistance. Part 3 of the Stronger
Futures in the Northern Territory Act provides for a
regulation-making power that will enable the modification of
Northern Territory legislation in relation to a community living
area, to facilitate the granting of individual rights or interests
and promote economic development.

This additional
function of the Land Councils will ensure that owners of community
living areas are able to use Land Council resources to assist with
dealings in land, including those that have been enabled by Part 3
of the Stronger Futures in the Northern Territory Act or by
Northern Territory legislative reform. This will ensure that
the owners of community living areas are able to access similar
support and assistance to traditional owners of Aboriginal land
under the Land Rights Act.

Explanation of the
changes

Item 1 inserts a new definition of
community living area into section 3 of the Land
Rights Act. This ensures that the definition of community
living area is consistent under both the Land Rights Act and the
Stronger Futures in the Northern Territory Act.

Item 2 repeals the existing definition
of community living area in subsection 20CA(5) of the Land
Rights Act, substituting it with the new definition inserted by
item 1.

Item 3 repeals Part IIB of the Land
Rights Act, which pertains to certain rights vested in the
Government or Government authorities, in relation to buildings or
infrastructure constructed with the assistance of government
funding. Part IIB was added to the Land Rights Act by
the Families, Community Services and Indigenous Affairs and
Other Legislation Amendment (Northern Territory National Emergency
Response and Other Measures) Act 2007 as part of the Northern
Territory National Emergency Response legislation package enacted
in 2007. No rights or interests have been vested in
government or government authorities under Part IIB.

Item 4 inserts paragraph 23(1)(eb) into
the Land Rights Act, which provides that, if a request is made by a
community living area owner, Land Councils have the function of
giving assistance, including legal, other administrative and
support assistance, to the owner of a community living area, which
is situated in the area of that Land Council, in relation to
dealings in the land. This may include the negotiation of
leases and the granting of other interests in the land. This
provision is to help community living area landowners to take
advantage of any future opportunities arising in relation to home
ownership and economic development on their land. The Land
Council is obliged to provide assistance at its own expense once a
relevant community living area landowner has requested that
assistance. Land Councils receive administrative funding from
the Aboriginals Benefit Account established under the Land Rights
Act.

Item 5 repeals paragraphs 23(1)(fb),
(fc) and (fd) of the Land Rights Act. These paragraphs oblige
the Land Council to represent Land Trusts or other land owners in
negotiations for agreed payments for leases granted under section
31 for the purposes of subsection 62(1G) of the NTNER Act.
Subject to subitem 10(2), these provisions have no further
effect on commencement of this Bill.

Item 6 repeals subsection 33B(1) of the
Land Rights Act, which covers the fees that a Land Council may
charge in relation to carrying out its functions under paragraphs
23(1)(fb), (fc) and (fd) of the Land Rights Act (to be repealed on
commencement of this Bill).

Item 7 is consequential to item 6 and
omits from subsection 33B(3) reference to subsection
33B(1).

Item 8 amends, subject to subitem
10(3), subsection 35(4) of the Land Rights Act by omitting from the
operation of section 35(4) reference to payments made in relation
to section 60 or 62 of the Northern Territory National
Emergency Response Act 2007 . Subsection 35(4) concerns,
among other things, the receipt and distribution of payments by the
Land Council, in relation to leases and licences that are granted
in Aboriginal land.

Item 9 amends paragraph 70(2C)(a) of
the Land Rights Act, by repealing the existing paragraph and
substituting:

(a) the land (the relevant
land ) the person entered or remained on is part of land
(the leased land ) that is leased under section 19A;
and

Subject to subitem 10(4), this
removes as a defence for the purposes of subsection 70(1) of
the Land Rights Act, land that is leased under section 31 of the
NTNER Act.

Item 10 provides certain saving
provisions in relation to items 5, 8 and 9 of this Schedule, which
have effect if this Bill commences before 17 August 2012
and if leases granted under section 31 of the NTNER Act continue
after commencement of this Bill (until no later than 17 August
2012), as determined by the Commonwealth Minister for Indigenous
Affairs for the purposes of clause 4. Should the leases
continue after commencement, item 10 ensures that payments made
under those leases, and the receipt and distribution of those
payments, continues. Similarly, item 10 ensures that the
defence under paragraph 70(2C)(a) of the Land Rights Act, for the
purposes of subsection 70(1) of that Act, continues until the
leases cease.

Items 11 and 12 provide for the
repeal of paragraph 70(8)(e) of the Land Rights Act because of the
repeal of Part IIB of the Land Rights Act.

Items 13 , 14 and 15 repeal
subsection 70E(17) of the Land Rights Act. For roads to which
subsection 70E(1) of the Land Rights Act applies, this removes the
Commonwealth Minister for Indigenous Affairs’ power to
impose, by written determination, temporary restrictions on the
entry or remaining on a road covered by a lease granted under
section 31 of the NTNER Act for the purpose of protecting public
health or safety.

Items 16 , 17 and 18 repeal
subsection 70F(14) of the Land Rights Act. For common areas
to which subsection 70F(1) of the Land rights Act applies, this
removes the Commonwealth Minister for Indigenous Affairs’
power to impose, by written determination, temporary restrictions
on the entry or remaining on a common area covered by a lease
granted under section 31 of the NTNER Act for the purpose of
protecting public health or safety.

Items 19 and 20 repeal paragraph
71(3)(e) of the Land Rights Act because of the repeal of Part IIB
of the Land Rights Act.

Item 21 repeals subsection 76(1A) of the
Land Rights Act because of the repeal of Part IIB of the Land
Rights Act.

Schedule 3 makes amendments to
the Classification (Publications Films and Computer Games) Act
1995 (Classification Act) to add a sunset and review date to
the provisions in Part 10 of that Act and to make certain other
minor amendments.

The purpose of Part 10 of the
Classification Act is to allow special measures to be taken to
protect children living in Aboriginal communities in the Northern
Territory from being exposed to material that is, or would likely
be, Refused Classification or classified X18+. The
restrictions on prohibited material imposed through the
Classifications Act will continue in prohibited material areas.
A prohibited material area is an area that has been declared
as such by the Commonwealth Minister for Indigenous Affairs in a
legislative instrument. Part 10 will sunset after 10 years
and will be subject to independent review after seven years of its
operation.

The Government considers this
measure to be a special measure within the meaning of subsection
8(1) of the Racial Discrimination Act 1975 (Racial
Discrimination Act). The amendments are being enacted to
address specific Aboriginal disadvantage and help Aboriginal people
to enjoy their human rights equally with others in the Australian
community. The object of Part 10 of the Classification Act,
provided at section 98A, reflects this intention. The Bill is
intended to operate, and to be construed, consistently with the
Racial Discrimination Act.

Background

The Classification Act ban on
prohibited material, introduced in 2007, was aimed at reducing the
risk of children being exposed to sexually explicit and very
violent material, as well as the potential risk of child abuse and
problem sexualised behaviour. The provisions prohibit the
possession and supply of sexually explicit or very violent material
distributed as publications, films or computer games.
Communities can move to have the prohibitions
lifted.

The prohibited material measure
was discussed during the 2011 Stronger Futures in the Northern
Territory consultations. Communities expressed the view that
the restrictions should continue.

Part 10 of the Classification
Act will apply to prohibited material areas that are determined by
the Commonwealth Minister for Indigenous Affairs. The measure
continues as a special measure for the purposes of the Racial
Discrimination Act.

Part 10 of the Classification
Act will be subject to an independent review after seven years in
operation and will sunset after 10 years of operation. The
Commonwealth Minister for Indigenous Affairs can, at any time
before the sunset of the Part, determine that some or all of the
Part will cease to have effect.

Explanation of the
changes

Item
1 changes the
title of Part 10 of the Classification Act from ‘Material
Prohibited in Prescribed Areas’ to ‘Material prohibited
in certain areas in the Northern Territory’ to reflect the
new name for areas in which the Part is to apply.

Item
2 repeals the
definition of prescribed area , which currently draws
on the definition in the NTNER Act.

Item
3 inserts a new
definition into section 99 of the Classification Act of
prohibited material area . Prohibited material
area is defined as an area in the Northern Territory in relation to
which a determination under subsection 100A(1) of the
Classification Act has been made by the Commonwealth Minister for
Indigenous Affairs.

Item
4 repeals the
current sections 100A and 100B of the Classification Act and
inserts a new section 100A - Prohibited material
areas.

The new
subsection 100A(1) provides that the Commonwealth Minister for
Indigenous Affairs, may, by legislative instrument, determine that
an area is a prohibited material area. If the Commonwealth
Minister for Indigenous Affairs determines an area to be a
prohibited material area, then the prohibited material restrictions
would apply to that area.

Subsection
100A(2) provides that the Commonwealth Minister for Indigenous
Affairs may, by legislative instrument, revoke or vary a
determination of an area being a prohibited material area.

Paragraphs
100A(3)(a) and (b) provide that the Commonwealth Minister for
Indigenous Affairs may make a determination regarding prohibited
material areas on his or her own initiative or after a request from
a person who is ordinarily a resident in an area to which the
determination relates.

Subsection
100A(4) provides that the Commonwealth Minister for Indigenous
Affairs must ensure community consultation takes place in relation
to a determination being made under subsection 100A(1) or 100A(2).
Prior to making a determination, the Commonwealth Minister
for Indigenous Affairs must ensure that community consultation
takes place. Subsection 100A(4) lists what must occur during
community consultation; including the provision of information
setting out the proposal and the consequences of making a
determination and providing a reasonable opportunity to people in
the community to make submissions to the Commonwealth Minister for
Indigenous Affairs about the proposal to make a determination, the
consequences of making a determination and the circumstances and
views of those affected by a proposal.

Subsection
100A(5) provides that a failure to consult in relation to
subsection 100A(4) does not affect the validity of a
determination by the Commonwealth Minister for Indigenous Affairs
either to determine an area to be a prohibited material area or to
vary or revoke such a determination.

Subsection
100A(6) provides that, in making a determination under subsection
100A(1) or 100A(2), the Commonwealth Minister for Indigenous
Affairs must have regard to:

· the
object of Part 10;

· the
wellbeing of people living in the area, whether people in the area
are victims of violence or sexual abuse and whether people have
expressed concerns about being at risk of violence or sexual
abuse;

· whether
children living in the area have been exposed to prohibited
material;

· the
extent to which people in the area have expressed the view that
their wellbeing would be improved if this Part continues to apply,
and submissions made in relation to paragraph
100A(4)(b);

· the
views of relevant law enforcement authorities; and

· any
other matters the Commonwealth Minister for Indigenous Affairs
considers relevant.

Subsection
100A(7) provides that, if the Commonwealth Minister for Indigenous
Affairs makes a determination under 100A(1) to determine that an
area is a prohibited material area, and then revokes or varies that
determination, Part 10 will continue to apply in relation to things
done or omitted to be done before the revocation or variation took
effect.

Item
5 provides that
the references in section 100C to sections 100A and 100B are
removed and replaced with a reference to the new
section 100A.

Item
6 changes the
heading of section 101 of the Classification Act to
‘Possession or control of level 1 prohibited material in
prohibited material areas’ to reflect the new name for areas
in which the Part is to apply.

Item
8 changes the
heading of section 102 of the Classification Act to
‘Possession or control of level 2 prohibited material in
prohibited material areas’ to reflect the new name for areas
in which the Part is to apply.

Item
10 changes the
heading of section 103 of the Classification Act to
‘Supplying prohibited material in and to prohibited material
areas’ to reflect the new name for areas in which the Part is
to apply.

Item
11 replaces the
term ‘prescribed area’ with ‘prohibited material
area’ in paragraphs 103(1)(b) and (2)(b).

Item 14 repeals the current sections 114
and 115 of the Classification Act and substitutes new sections 114,
115 and 116.

New section 114 provides that
the Commonwealth Minister for Indigenous Affairs must cause an
independent review of the first seven years of the operation of
Part 10, with a report provided before the end of eight years after
commencement of this Part. The review must assess the
effectiveness of the special measures in Part 10 and consider any
other matter specified by the Commonwealth Minister for Indigenous
Affairs. The Commonwealth Minister for Indigenous Affairs
must table a copy of the review report in both Houses of the
Parliament within 15 sitting days of it being received.

New section
115(1) provides that the Commonwealth Minister for Indigenous
Affairs may, by legislative instrument, determine that some or all
of Part 10 ceases to have effect. Subsection 115(2) provides
for the Commonwealth Minister for Indigenous Affairs to revoke, by
legislative instrument, a determination under subsection 115(1).
Prior to making a determination, the Commonwealth Minister
for Indigenous Affairs must ensure that community consultation
takes place. Subsection 115(3) lists what must occur during
community consultation, including: providing information
setting out the proposal and consequences of making the
determination; and providing a reasonable opportunity to people
living in the area to make submissions to the Commonwealth Minister
for Indigenous Affairs about the proposal to make the
determination, the consequences of making the determination; and
the circumstances and views of those affected by the
proposal.

New subsection
115(4) provides that failure to consult does not affect the
validity of a determination by the Commonwealth Minister for
Indigenous Affairs either to determine an area to be a prohibited
material area or to revoke such a determination.

New subsection
115(5) requires that, before making a determination under
subsection 115(1) or 115(2), the Commonwealth Minister for
Indigenous Affairs must have regard to:

· the
object of Part 10;

· the
wellbeing of people living in the area, whether people in the area
are victims of violence or sexual abuse and whether people have
expressed concerns about being at risk of violence or sexual
abuse;

· whether
children living in the area have been exposed to prohibited
material;

· the
extent to which people in the area have expressed the view that
their wellbeing would be improved if this Part continues to apply,
and submissions made in relation to paragraph 115(3)(b);

· the
views of relevant law enforcement authorities; and

· any
other matters the Commonwealth Minister for Indigenous Affairs
considers relevant.

New subsection
115(6) provides that, if the Commonwealth Minister for Indigenous
Affairs makes a determination under 115(1), then Part 10 continues
to apply after the determination takes effect, in relation to
things done or omitted to be done before the determination takes
effect.

New section 116
is a sunset provision. Part 10 will cease to have effect
10 years after the Stronger Futures in the Northern Territory
Act receives Royal Assent.

Item
15 provides that
any areas declared as prescribed areas under the NTNER Act
immediately before its repeal, or determined under the
Classification Act to be subject to prohibited material
restrictions immediately before commencement, will, on
commencement, be taken to be a prohibited material area for the
purposes of new subsection 100A(1) of the Classification Act.
A determination referred to in subitem 15(1) can be
revoked or varied under the new subsection 100A(2) of the
Classification Act.

Item
16 provides that
amendments made by Schedule 3 apply to acts or omissions done or
made on or after commencement in relation to material that was
classified before, on or after commencement.

Schedule 4 - Amendment of
the Crimes Act 1914

Summary

Schedule 4 amends the Crimes
Act 1914 to continue measures
currently in place under the NTNER Act, which will be repealed,
that relate to bail and sentencing decisions for offences against
Northern Territory law. The amendments enable customary law and
cultural practice to be considered in bail and sentencing decisions
for offences against Commonwealth and Northern Territory laws that
protect cultural heritage, including sacred sites or cultural
heritage objects

Background

Under the Crimes
Act, customary law and cultural practice must not be taken into
account in bail and sentencing decisions for offences against
Commonwealth laws. Sections 90 and 91 NTNER Act provide
cultural law and customary practice cannot be taken into account
for offences against Northern Territory laws. This
requirement ensures that customary law and cultural practice cannot
be taken into account as a mitigating factor in bail and sentencing
decisions. In particular, this requirement is intended to
prevent customary law and cultural practice being used to mitigate
the seriousness of any offence that involves violence against women
and children. This gives effect to the Council
of Australian Governments’ agreement of 14 July 2006 that no
customary law or cultural practice excuses, justifies, authorises,
requires, or lessens the seriousness of violence or sexual
abuse.

Section 90 of the NTNER Act also
sets out requirements to ensure that the potential implications of
granting bail for witnesses and victims are considered.
Schedule 4 will provide for the continued operation of the
requirements under sections 90 and 91 of the NTNER Act after that
Act is repealed, by extending the operation of the relevant
sections of the Crimes Act to Northern Territory
offences.

The requirement that
courts and other bail authorities must not consider customary law
or cultural practice has had unintended adverse consequences for
offences that protect cultural heritage, including sacred sites,
and cultural heritage objects. One of the reasons that these
types of offence apply is the significance of a place or object
under customary law or for cultural reasons. As a result,
otherwise relatively minor criminal behaviour, such as entering a
particular site, is more serious by virtue of the significance of
that site according to customary law or cultural
practice.

This issue was
highlighted by the Northern Territory
Supreme Court’s decision in Aboriginal Areas Protection Authority
v S & R Building and Construction Pty Ltd [2011] NTSC
16 (10 January 2011). The facts of the case involved a
building company (the defendant) constructing a pit toilet on a
sacred site. The defendant was charged under section 34(1) of
the Northern Territory’s Northern Territory Aboriginal
Sacred Sites Act with carrying out unauthorised work on an
Aboriginal sacred site. The defendant pleaded guilty to the
offence and was fined $500 by the sentencing magistrate. The
custodians of the site appealed against the decision to the
Northern Territory Supreme Court on the grounds that the sentence
was manifestly inadequate. In considering the question of
whether the magistrate had failed to take into account Aboriginal
law and cultural practice when determining the extent of the damage
caused by construction on the site, Justice Southwood noted that
customary law could not be taken into account, due to the
requirement under section 91 of the NTNER Act that customary law
and cultural practice not be considered in sentencing.
Ultimately, the judge found that the $500 fine imposed by the
sentencing magistrate was not manifestly
unjust.

Schedule 4 will address these
unintended adverse consequences by enabling customary law and
cultural practice to be considered for certain
offences.

Explanation of the
changes

Item 1 inserts a definition
of the term cultural heritage . New
subsection 3(1) defines cultural heritage to have the same
meaning as in the Environment Protection and Biodiversity
Conservation Act 1999 and includes sacred sites. Cultural
heritage is defined under the Environment Protection and
Biodiversity Conservation Act 1999 to take the same
definition as that in the Convention Concerning the
Protection of the World Cultural and Natural Heritage
1972 . Under Article 2 of the Convention, the following is
considered to be cultural heritage:

· natural
features consisting of physical and biological formations or groups
of such formations, which are of outstanding universal value from
the aesthetic or scientific point of view;

· geological and
physiographical formations and precisely delineated areas which
constitute the habitat of threatened species of animals and plants
of outstanding universal value from the point of view of science or
conservation; and

· natural
sites or precisely delineated natural areas of outstanding
universal value from the point of view of science, conservation or
natural beauty.

The definition to be
inserted by item 1 will apply to the regulation-making powers that
will be inserted by the Bill. These powers will enable
customary law and cultural practice to be considered in bail and
sentencing decisions that relate to additional offences prescribed
by regulation. In order to be prescribed by regulation, the
offence must relate either to entering, remaining on or damaging
cultural heritage, or to damaging or removing a cultural heritage
object. Item 2 will insert a definition of the term cultural
heritage object.

Item 2 inserts a definition
of the term cultural heritage object . New
subsection 3(1) defines a cultural heritage object to mean an
object that is important for cultural, religious, ethnological,
archaeological, historical, literary, artistic, scientific or
technological reasons. The definition to be inserted by item
2 will apply to the regulation-making powers that will be inserted
by the Bill. These powers will enable customary law and
cultural practice to be considered in bail and sentencing decisions
that relate to additional offences prescribed by regulation.
In order to be prescribed by regulation, the offence must relate
either to entering, remaining on or damaging cultural heritage, or
to damaging or removing a cultural heritage object. Item 1
will insert a definition of cultural heritage.

Item 3 amends subsection
15AB(1) of the Crimes Act by inserting the words ‘or the
Northern Territory’. Currently, subsection 15AB(1) of
the Crimes Act only applies to Commonwealth offences. The
amendment will result in the subsection applying to both Northern
Territory and Commonwealth offences. Under item 3, the
matters to be considered by bail authorities for Northern Territory
offences will be those set out in section 15AB of the Crimes
Act. These matters are the same as those currently under
section 90 of the NTNER Act.

· consider the
potential impact of granting bail on victims and potential
witnesses;

· consider whether or
not a person is living in or located in a remote community;
and

· not consider
customary law and cultural
practice.

Item 4 inserts new
subsection 15AB(3A) after subsection 15AB(3).
Subsection 15AB(3A) will provide that the prohibition on
considering customary law and cultural practice in bail decisions
under paragraph 15AB(1)(b) of the Crimes Act does not apply to
particular Commonwealth and Northern Territory offences.
Under paragraph 15AB(1)(b) of the Crimes Act, bail
authorities must not take customary law or cultural practice into
account in determining whether to grant bail and in determining
bail conditions. New subsection 15AB(3A) creates a series of
exceptions to this prohibition, and provides that bail authorities
can take customary law and cultural practice into account in bail
decisions for offences against the following Commonwealth and
Northern Territory laws:

· paragraph 33(a) of
the Heritage Conservation Act of the Northern Territory;

· section 4 of the
Aboriginal Land Act of the Northern Territory; and

· sections 111, 112
and 113 of the Heritage Act of the Northern Territory.

Each section
referred to contains an offence or offences where all parts of the
criminal behaviour could involve entering, remaining on or damaging
cultural heritage and/or damaging or removing cultural heritage
objects.

New subsection
15AB(3A) will enable bail authorities to take customary law and
cultural practice into account for offences against the laws
specified, in considering the seriousness of an alleged
offender’s criminal behaviour when determining whether to
grant bail or the conditions on which bail should be granted.
The current prohibition on considering customary law in bail
decisions will continue to apply for offences against other
Commonwealth and Northern Territory laws, including those relating
to violence against women and children.

Paragraph
15AB(3A)(j) will create a regulation-making power to enable
additional laws to be prescribed by regulation. This will
enable customary law and cultural practice to be considered in bail
decisions for offences against additional laws that are prescribed
by regulation. In order to be prescribed, the law must relate
to entering, remaining on or damaging cultural heritage or damaging
or removing a cultural heritage object.

Item 5 is consequential to the
insertion of new subsection 15AB(3A) by item 4, and amends
subsection 15AB(4) to refer also to new
subsection 15AB(3A). Subsection 15AB(4) provides that
section 15AB does not otherwise affect any other matters that a
bail authority must, must not or may take into account when
determining whether to grant bail and subject to what
conditions. This means that, except where subsection 15AB(1)
or (2) provides to the contrary, the matters that a bail authority
must consider, such as the requirements under section 24 of the
Northern Territory’s Bail Act, are not affected. The
effect of the amendment of subsection 15AB by item 5 will be that
the matters a bail authority must, must not, or may take into
account will not be affected, except to the extent that new
subsection 15AB(3A) requires that customary law and cultural
practice be considered in relation to certain
offences.

Item 6 repeals the current heading
of section 16A of the Crimes Act and replaces it with a new
heading. The current heading of section 16A of the Crimes Act
is not jurisdiction-specific, as currently the section only applies
to the Commonwealth. The amendment will make the heading
specific to federal offences. This differentiates the section
from new section 16AA, inserted by item 8, which contains similar
provisions in relation to Northern Territory
offences.

Item
7 inserts new
subsection 16A(2AA). Subsection 16A(2AA) will provide that
the prohibition on considering customary law and cultural practice
by courts in sentencing under subsection 16A(2A) of the Crimes Act
does not apply to certain offences under Commonwealth law.
Under subsection 16A(2) of the Crimes Act, a court must not
consider customary law or cultural practice when determining the
sentence to be passed or order to be made. Subsection
16A(2AA) will create a series of exceptions to this prohibition.
The new subsection will provide that customary law and
cultural practice can be taken into account when determining the
sentence to be passed or order to be made, in relation to offences
against the following Commonwealth laws:

Item 4 of this
Schedule provides that customary law and cultural practice can be
considered in bail decisions in relation to offences against the
same Commonwealth laws. Item 8 of this Schedule inserts a new
section providing that customary law and cultural practice can be
taken into account when determining the sentence to be passed or
the order to be made in relation to certain offences against
Northern Territory laws.

New section 16A(2AA)
will enable courts to take customary law and cultural practice into
account when considering the seriousness of an offender’s
criminal behaviour where the offence is one related to cultural
heritage or cultural heritage objects. The current
requirement that courts must not consider customary law and
cultural practice in sentencing for other offences, including those
relating to violence against women and children would continue to
apply.

Paragraph
16A(2AA)(f) will create a regulation-making power to enable an
additional law to be prescribed by regulation, where that law
relates to entering, remaining on or damaging cultural heritage, or
damaging or removing a cultural heritage object. This will
enable customary law and cultural practice to be considered in
sentencing for offences against additional Commonwealth laws that
are prescribed by regulation.

The purpose of the
regulation-making power is to enable further offences to be
prescribed at a later date, for example if new Commonwealth or
Territory laws are made.

Definitions of
cultural heritage and cultural heritage object will be inserted by
items 1 and 2 respectively.

Item 8 inserts new section 16AA
and sets out the matters to which a court must have regard in determining the sentence to be passed or order to be
made for offences against a law of the Northern Territory.
New subsection 16AA(1) is the same as section 91 of the
NTNER Act, repealed by item 1 , in Part 1 of Schedule 1 to this Bill.
The new subsection provides that a court must not taken into
account any form of customary law or cultural practice as a reason
for:

· excusing, justifying, authorising,
requiring or lessening the seriousness of the criminal behaviour to
which the offence relates; or

· aggravating the seriousness of the
criminal behaviour to which the offence relates.

In this way, the requirement that
courts must not consider customary law and cultural practice in
sentencing for other types of offences, including those relating to
violence against women and children would continue to
apply.

Subsection 16AA(2) provides that
the requirement not to consider customary law and cultural practice
does not apply to offences against the laws specified in that
subsection. The effect of the subsection is that courts can
take customary law and cultural practice into account in sentencing
decisions for the following offences against Northern Territory
laws:

These exceptions are
the same as those provided for in relation to bail decisions as a
result of the amendments to be inserted by item 4.

Paragraph 16AA(2)(e)
will create a regulation-making power to enable additional laws to
be prescribed by regulation, where that law relates to entering,
remaining on or damaging cultural heritage or damaging or removing
a cultural heritage object. This will enable customary law
and cultural practice to be considered by courts in determining the
sentence to be passed or order to be made for offences against
additional Northern Territory laws that are prescribed by
regulation. The purpose of the regulation-making power is to
enable further offences to be prescribed at a later date, for
example if new Commonwealth or Territory laws are
made.

Item 9 sets out how the amendments
to the Crimes Act in Schedule 4 will apply. The amendments
made by items 1, 2, 3, 4 and 5 of Schedule 4 will apply to bail
proceedings that are initiated on or after commencement of this
Bill, provided the proceeding is not an appeal against a decision
of a bail authority that was made before commencement. The
amendments made by items 1, 2, 7 and 8 of this Schedule will apply
to sentencing proceedings that are initiated on or after
commencement, provided the proceeding is not an appeal against a
sentence that was imposed before commencement.

Schedule 5
- Amendment of other Acts

Summary

Schedule 5 provides for an
amendment to the Social Security (Administration Act) 1999
so that references to the NTNER Act, in relation to income
management, are removed.

Background

As the NTNER Act is being
repealed, references to the NTNER Act need to be removed. The
references were to community stores, which will now be required to
be licensed if they are deemed by the Secretary to be an
‘important source of food, drink or grocery
items’.

Explanation of
the changes

Items 1 and 2 repeal certain notes
in relation to provisions in Part 3B (income management regime) of
the Social Security (Administration) Act 1999 , which
contain references to the NTNER Act.